07a20115
09-23-2003
Thomas Ramos, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, (Immigration and Naturalization Service), Agency.
Thomas Ramos v. Department of Homeland Security
07A20115
September 23, 2003
.
Thomas Ramos,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
(Immigration and Naturalization Service),
Agency.
Appeal No. 07A20115
Agency No. 1-96-8060
Hearing No. 160-A0-8299X
DECISION
The agency timely initiated an appeal from a decision of an EEOC
Administrative Judge (AJ) concerning complainant's claim of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission vacates
the AJ's decision.
The record reveals that during the relevant time, complainant was employed
as a Drug Enforcement Officer (DEO) at the agency's Detention/Deportation
Branch in the New York Service Processing Center (NYSPC). Complainant
sought EEO counseling and subsequently filed a formal complaint on
September 29, 1996, in which he alleged discrimination on the basis of
sex (male) when he was not given a light duty assignment following an
on-the-job injury which ultimately led to his removal.<1> The complaint
was accepted by the agency for investigation.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
in which she found discrimination. Specifically, the AJ found that
complainant made out a prima facie case of sex discrimination because he
was a member of a protected group and treated differently from members not
in his protected group (i.e., two pregnant females who were given light
duty in the Control Booth, and an injured female employee who was given
light duty in the District Office). The AJ then found that the agency's
legitimate, nondiscriminatory reason, namely, complainant was not given a
permanent light duty assignment because no such assignments were available
in the NYSPC, was a pretext for discrimination. The AJ reasoned that if
one of the pregnant females was given a light duty assignment in which
she had no contact with inmates and was excused from firearm activities,
then complainant should have been given a similar assignment. The AJ's
pretext analysis made no mention of the other pregnant female and the
injured female who was given light duty in the District Office.
In her decision, the AJ, while noting that complainant only alleged sex
discrimination, added the basis of disability (carpal tunnel syndrome)
to complainant's claim. The AJ averred that the facts of the case
were appropriate for a reasonable accommodation analysis. She then
determined that complainant was an individual with a disability entitled
to coverage under the Rehabilitation Act. Once making this determination,
she found the agency guilty of disability discrimination because there
was no attempt to reassign complainant into a position consistent with
his medical restrictions.<2>
In its final order, the agency did not adopt the AJ's findings and
simultaneously filed an appeal with this Commission. In the memorandum
supporting its final order, the agency argued, inter alia, that judgment
as a matter of law should not have been granted in favor of complainant
as to his sex discrimination claim. In this regard, the agency argued
that the comparative employees (the two pregnant employees and the
injured female employee) were not similarly situated to complainant
because their conditions were temporary in nature while complainant's
was not. The agency further argued that even temporary assignment to the
Control Booth would not have been consistent with complainant's medical
restrictions because the duties of the Control Booth position required
repetitive hand motions. Regarding the AJ's disability determination,
the agency argued that there is no evidence in the record that complainant
is an individual with a disability. On appeal, the agency incorporates
by reference the arguments contained in the memorandum supporting the
final order. Complainant did not file a response to the agency's appeal.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
In finding discrimination, the AJ made credibility determinations that
should not have been made absent strident cross-examination. For example,
the agency officials stated that although one of the pregnant female
employees was excused temporarily from firearms re-certification or a
periodic weapons training session, she was always required to carry a
firearm and possessed the ability to discharge it, something complainant's
medical condition prevented. The agency maintained that all DEOs, even
those assigned to the Control Booth during light duty, had to have the
ability to carry and discharge firearms. It appears that the AJ did not
find credible the agency's contention that complainant could not perform
Control Booth duties because he could not discharge a firearm. The AJ's
credibility finding was based on testimony from the pregnant female who
stated that she was excused from firearm activities while working in the
Control Booth. In addition, we note that the record is not sufficiently
developed such that a fact finder can determine whether being excused from
firearm activities is tantamount to not being able to discharge a firearm.
Further, the AJ relied on complainant's representation that he could have
been assigned to a light duty position in the NYSPC. In so doing, the
AJ ignored statements from agency officials which suggest that given the
nature of the work within NYSPC, the only employees who were reassigned
into light duty positions were those who had temporary conditions (like
pregnant females), and that no employees were reassigned when it appeared
that their impairments were more long-term in nature because there were
no permanent positions into which they could be reassigned. Finally,
it appears that the AJ's finding of discrimination on the basis of sex
was driven, at least in part, by statements from a few male employees
that the responsible management official (RMO) was biased against men
even though the RMO denied those accusations.
Also missing from the record is documentation that would support a
finding that complainant is an individual with a disability entitled to
coverage under the Rehabilitation Act. The medical information in the
file indicated that complainant suffered from carpal tunnel syndrome
and had some restrictions in the activities of lifting and repetitive
hand movement. That medical information, however, does not measure or
quantify the nature of complainant's lifting restrictions, thus it is
difficult to ascertain whether he was actually substantially limited
in that regard. Concerning complainant's hand movement restrictions,
there is no information in evidence demonstrating how those restrictions
affected him in performing those manual tasks that are essential to
our daily lives. See Hebert v. Department of the Navy, EEOC Appeal
Nos. 01996432 and 01A05665 (June 3, 2002) (holding that in order to be
substantially limited in performing manual tasks, an individual must have
an impairment that prevents or severely restricts that individual from
doing activities that are of central importance to daily life). Moreover,
even if such information was in the evidentiary file, there is nothing
to refute the agency's argument that there were no available permanent
positions into which complainant could have been reassigned. See Hampton
v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002)
(holding that in cases where reassignment as an accommodation under the
Rehabilitation Act is an issue, the burden is on complainant to establish
that it is more likely than not that there were vacancies during the
relevant time period into which complainant could have been reassigned).
We note that the hearing process is intended to be an extension of the
investigative process, designed to ensure that the parties have "a fair
and reasonable opportunity to explain and supplement the record and, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
�Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims.�
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998). See also Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United
States Postal Service, EEOC Request No. 05940578 (April 23, 1995).
In summary, there are simply too many unresolved issues which require
further development of the record and an assessment as to the credibility
of various management officials, co-workers, and complainant. Therefore,
judgment in favor of complainant as a matter of law should not have
been granted.
Therefore, after a careful review of the record, including the agency's
arguments on appeal, and arguments and evidence not specifically discussed
in this decision, the Commission vacates the AJ's decision and remands the
matter to the agency in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which
to file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 23, 2003
__________________
Date
MEMORANDUM
TO: New York District Office
Hearings Unit
THROUGH: Spencer H. Lewis, Jr.
Director, New York District Office
FROM: Carlton M. Hadden, Director
Office of Federal Operations
RE: Thomas Ramos v. Department of Homeland Security,
EEOC Appeal No. 07A20115
Enclosed is a decision requiring that the referenced complaint be
assigned to an Administrative Judge for the scheduling of a hearing.
We request that the Administrative Judge notify the Compliance Division
of the Office of Federal Operations after a decision has been issued.
If you have any questions regarding the further processing of this
complaint, please contact Robert Barnhart, Director of Compliance and
Control at (202) 663-4525.
cc: Anna Middlebrook
Administrative Judge Coordinator
1Complainant was removed from his position in August 1997. Pursuant to
the AJ's order for interim relief, the agency offered complainant a
comparable position on July 27, 2002. At the time of the agency's
appeal, filed on August 5, 2002, complainant had not accepted the
agency's offer.
2A medical note, dated May 17, 1996, indicated that complainant could
only perform light duty such as desk work while awaiting surgery.
Another note, dated May 21, 1996, indicated that complainant was
completely disabled from his job due to persistent tenderness and
numbness in his left hand. The final note, dated April 14, 1997,
indicated that complainant could do light duty and at all times should
wear a left hand splint. The letter further indicated that complainant
could do no heavy lifting or engage in work that required repetitive or
strenuous left hand motion.